Lankford v. Platte Iron Works Co.

Mr. Justice McKenna

delivered the opinion of the court.

Suit in equity brought by appellee against appellants, constituting the Oklahoma State Banking Board. The Platte Iron Works Company, appellee, is a Maine corporation and a citizen of that State and became the holder of two certain time certificates of deposit issued by the Farmers’ & Merchants’ Bank of Sapulpa. Appellants are members of the State Banking Board, and the appellant J. D. Lankford is the State Bank Commissioner.

On September 10, 1912, the Bank Commissioner took charge of the Farmers’ & Merchants’ Bank and of all its assets and proceeded to wind up its affairs. Demand for the payment of the certificates was made upon the Banking Board and the Commissioner out of the Depositors’ Guaranty Fund of the State, but payment was refused.

A decree was prayed adjudging appellee owner of the deposits and certificates of deposit and that it was entitled to have the same paid out of the Depositors’ Guaranty Fund created under'and by virtue of the laws of the State. If there should be not sufficient funds available therefor, that the Banking Board be required to issue to appellee certificates of indebtedness for the amount of the deposit, to be known as “Depositors’ Guaranty Fund Warrants of the State of Oklahoma” bearing 6% interest as provided by § 3, Article 2, Chapter 31, Session Laws of Oklahoma, . 1911, as amended by Senate Bill No. 231, passed at the last session of the State Legislature, and that the Banking Board be required to levy an assessment against the capital stock of each and every bank and trust company organized and existing under the laws of Oklahoma for the purpose of increasing such Depositors’ Guaranty Fund and pay the deposits and the “Depositors’ Guaranty Fund • Warrants of the State of Oklahoma.” General relief was also prayed.

Defendants in the suit, appellants hére, moved to dismiss the bill on the ground that the court had no jurisdiction of the action or of the persons of the defendants, the suit being one against the State of Oklahoma without its consent, in violation of the provisions of the Eleventh Amendment to the Constitution of the United States.

The motion was.denied and defendants were given thirty-days to answer. No answer appears in the record but the decree recites that one was filed. The court entered a decree as prayed for in the bill and this appeal was then prosecuted.

The assignments of error in this court are: (1) The suit is an original action in mandamus and the District Court had no jurisdiction, the' same not being ancillary to any judgment theretofore obtained; (2) the suit is one against the State, “the defendants [appellants] having no personal interest therein and being sued in their official capacity as agents” of the State; (3) the amended bill upon its - face states no cause of action for relief.

Is the suit one against the State? The appellee earnestly contends that the answer should be in the negative. “An action,” counsel say, “against a State officer to compel him to perform duties prescribed by law is not an action against the State. An officer who refuses to obey the laws does not stand for the State, within the meaning of the Federal Constitution.”

These contentions depend upon the meaning of the law; they assume its commands are disobeyed by the officers of the Staté; in other words, that the default of the officers is personal, in opposition — not in conformity — to the law of the State. But another and seemingly broader contention is made.' It is asserted that the Depositors’ Guaranty Fund is not under the executive and legislative control of the. State and cannot be used by either for any purpose whatever, but “can be used solely for the purpose of paying depositors of failed banks.” Two questions, therefore, are presented, one of power and one of interpretation.

This court, in Noble State Bank v. Haskell, 219 U. S. 104, sustained the constitutionality of the act as an exercise of the police power of the State. The law in its general purpose was there presented and passed on. The relation of the State to the fund did not come up for consideration, but necessarily this is but a detail in administration not one affecting legality of the law. The creation of the fund was said to be justified by its purpose, and the power of the State was declared adequate to accomplish it. “The purpose of the fund,” it was said, “is shown by its name. It is to secure the full repayment of deposits.”

Where the State should vest, the title to the fund for the purpose of its administration was immaterial to the essence of the power to create the-fund. Whether the State should commit it to the mere ministerial administration of the Bank Commissioner and Banking Board and subject them to controversies with depositors or draw around them the circle of its immunity, was a matter within its competency to determine,,and we are brought to the question of interpretation: — which has the State done?

By the statute, the Banking Board is composed of the Bank Commissioner and three other persons, to be appointed by the Governor; and it is provided that the “Board shall have supervision and control of the Depositors’ Guaranty Fund, and shall have power to adopt all necessary rules and regulations not inconsistent, with law for. the management and administration of said fund.” The fund is created by levying “against the capital stock of each and every bank organized and existing under the laws” of the “State an annual assessment equal to one-fifth of one per cent., and no more, of its average daily deposits during its continuance as a banking corporation,” the fund to be “used solely for the purpose of liquidating deposits of failed banks and retiring warrants próvidéd for” in the act. If at any time the fund be insufficient for such purpose or to pay “other indebtedness properly chargeable against the same, the Banking Board shall have authority to issue certificates of indebtedness to be known as ‘Depositors’ Guaranty Fund Warrants of the State of Oklahoma,’ in order to liquidate the deposits” or such other indebtedness. It is provided that the depositors shall be paid in .full, and’ when the cash available or that can be made immediately available is not sufficient to discharge the obligations of the bank or trust company “the Banking Board shall draw from the depositors’ guaranty fund and from additional assessments, if required, as provided in § 300, the amount necessary to make up the deficiency; and the State shall have, for the benefit of the depositors’ guaranty fund, a first lien upon the assets of said-bank or trust company, and all liabilities against the stockholders, officers and directors of said bank or trust company and against all other persons, corporations or firms. Such liabilities may be enforced by the State for the benefit of the depositors’ guaranty fund.”

The contention of appellee is that the law has created a fund for the payment of depositors and directs that they shall be paid in full from the fund or “from additional assessments.” If the fund be insufficient for such purpose, it is further contended, the Board is required to issue guaranty fund warrants in order to liquidate the deposits. Such, it is insisted, are' the plain commands of the statute to which obedience is imposed and is necessary to fulfill the purpose of the law, which is to secure the full repayment to depositors. And, therefore, a-suit by depositors is not a suit against the State but a suit to compel submission by' the officers of the State to the laws of the State, accomplishing at once the policy of the law and its specific purpose.

There is strength in the contentions and we are not insensible to it, but there may be more complexity in fulfilling the scheme of the statute than the language of counsel exhibits and it may be embarrassed if not defeated by subjecting the Banking Board to incessant judicial inquiries of its administration. We certainly cannot assume that it will not do its duty and provide the •ultimate payment of all depositors. To this result the State makes itself an active agent. It is given a hen upon the assets of insolvent banks and upon all liabilities against their stockholders, officers, directors, and against other persons, which may be enforced by the State for the benefit of the fund which its law has created.

In Murray v. Wilson Distilling Co., 213 U. S. 151, there is analogy to the case at bar.' The State of South Carolina in the year 1892 assumed the exclusive management of all traffic in liquor. It subsequently abandoned the scheme and passed an act called “the State Dispensary act” to provide for the disposition of ah property of the instrumentality it had created and to wind up its affairs. A commission was appointed for that purpose. A part of the duties of the commission was to dispose of the property, collect all debts clue and pay “from the proceeds thereof all just liabilities at the earliest date practicable.” Any surplus was to be paid to the State Treasury. A duty, therefore, was imposed upon the commission to collect the assets of the dispensary and pay its debts and it was as directly expressed as was the duty imposed upon the Banking Board in the pending case. .

The Wilson Distilling Company contended that the Winding-up Act of the State created a .trust, and the funds in the hands of the commission were a trust fund held for the benefit of the creditors of the State dispensary and the suit a plain suit in equity brought by a ceetui que trust to compel a trustee holding property for his benefit to perform the duties imposed upon him. The suit, therefore, it was contended, was not to require the commissioners to do that which the law of the State forbade, but to do what jhe law of the State commanded, and the State was not a necessary; nor an indispensable party. The contentions received the approval * of the Circuit Court of Appeals, but this-court took a different view of them and decided that there was “no just ground for the conclusion that the State, in providing by that legislation for the liquidation of the affairs of the State dispensary, intended to divest itself of its right of property in the assets of that governmental agency, and to endow the commissioners with a right and title to the property which placed it so beyond the control of the State as to authorize a judicial tribunal to take the assets of the State out of the hands of those selected to manage the same, and by means of a receiver to administer such assets as property affected by a trust, irrevocable in its nature, and thus to dispose of the same without the presence of the State.” (213 U. S., p. 170.) The case, it is true, has some differences from that at bar. There the State was the owner of the property committed to the commissioners for disposition and was also the original debtor. Here the property is that of the contributing banks and is accumulated in a fund for the security of their respective depositors. These are differences, but there are substantial resemblances. In that case officers were appointed to administer the property and liquidate and pay the demands against it, and this was the specific direction of the law, marking the beneficiaries and apparently making them the exclusive parties in any proceedings to enforce the law. In this case officers are appointed having even a greater power. They are not only empowered to liquidate the deposits or other indebtedness of failed' banks, but to levy assessments on other banks to make up any déficiency. Therefore, as the State was said to be a necessary party in the cited case, the State can, be said to be a necessary party in the pending case because of its interest that the fund which it has caused to be created in pursuance of its policy shall be administered by the officers it has appointed rather than by judicial tribunals. Certainly this construction can be given to the Oklahoma statute; and, granting that it may admit of dispute, an important element to be considered is the decision of the state tribunals.

In State v. Cockrell, 112 Pac. Rep. 1000, the Supreme Court of Oklahoma had occasion to define the duties of State Examiner and Inspector. It decided that the office was constituted, by the constitution of the State and was independent of the control of the Governor, and passing upon the authority of the Examiner and Inspector over the accounts of the Bank Commissioner it decided that “the funds and assets” of án insolvent bank are .“under the management of the State” and “that the depositors’ guaranty fund and the funds of a failed bank in the hands of a Bank Commissioner for the purpose of reimbursing the depositors’ guaranty fund is as much a fund of the State as the common school fund.”

It was further decided that the act creating the fund was sustained as an exercise of the police power for the public welfare of the people of the State and, having been so exercised, the assessment levied, by it upon deposits for the purpose of protecting the depositors of the banks is the exertion of the same power “which levies or causes to be levied, a tax upon the prQperty within the State for the maintenance aiid support of the common schools and educational institutions.” And it was said, “The title of such depositors’- guaranty fund vests in the State just as much so as the common school lands or the proceeds of the sale of the same, and the taxes levied ahd collected for the maintenance and support of said schools, all of- which are held in trust by the State for a specific purpose. Even if it were not a state fund, it would at least be a fund under the management, of the State.”

From this decision it appears that the law intended to give to the State as definite a title to the Depositors’ . Guaranty Fund as to the common school fund, as definite, therefore, as the title of South Carolina to the assets of the State dispensary, which was the subject of decision in Murray v. Wilson Distilling Company. In both cases there were ultimate beneficiaries — in the pending case, the bank depositors; in the other case, the creditors of the dispensary. And the purpose of the law — or, if you will, the command of the law — in each cáse was or is the satisfaction of the claims of those beneficiaries. The fund having this ultimate destination does not take its administration from the officers of the State or subject them to judicial control. We cannot assume that it will not be faithfully managed and applied.

In Lovett et al., County Commissioners of Creek County, v. Lankford et al., composing the Banking Board of the State of Oklahoma, 145 Pac. Rep. 767, the Supreme Court of Oklahoma decided, citing the Cockrell Case, that the defendants in error in the case composing the Banking Board were “executive officers of the State, and in performing their duties in administering the law under consideration (the Guaranty-Fund Act), do so as such officers, and the property entrusted to their control and management by the law is property owned by the State, or property in which the State has an interest,” and that therefore a suit against them to compel their administration of the depositors’ guaranty fund “is, in fact, a suit against the State; and in the absence of the consent of the State, the same cannot be maintained.” The court further said that “the law has specifically confided to the Banking Board and the Bank Commissioner the duty and authority to determine the validity of claims against the depositors’ guaranty fund,” and, also that “it is not only their duty to determine when a claim is valid against the bank, but they must further determine whether such claim is protected and required to be paid from the depositors’ guaranty fund. Lankford v. Oklahoma Engraving and Printing Co., 35 Oklahoma, 404.” Any other view, the court in effect said, would not only substitute the judgment of á court for that of the officials, “but would harass and create confusion, the, effect of which would destroy the efficiency of such board.” That case and Columbia Bank and Trust Company v. United States Fidelity and Guaranty Company, 33 Oklahoma, 535, give special emphasis to the principle announced. Both were suits to recover deposits respectively of county and state moneys deposited as general or special deposits.

It yvill serve no purpose to review the cases cited by appellee in which state officers were- enjoined from doing unlawful acts, prescribed, it may be, by unconstitutional ' laws, or commanded by valid laws to perform specific duties. Examples of such cases are reviewed and distinguished in Murray v. Wilson, and there is a later example in Hopkins v. Clemson College, 221 U. S. 636.

The foundation of appellees’ argument is,, as we have said, that the Oklahoma statute imposed the duty upon the Bank Commissioner of paying depositors of insolvent banks and that “this suit, therefore, instead of being against the State, is against its servants to compel the performance of duties, which, by their acceptance of the office, they obligated themselves to perform.” A duty being prescribed, it is further contended, the officers “cannot seek shelter behind the State for the, abuse of their discretion in office.” But these contentions and the arguments based upon them all depend upon an incorrect version of the statute, as we have seen.

Decree reversed.